Simone Del Rosario:

We have a very clear idea of what President-elect Donald Trump plans to do with his next four years when it comes to things like trade, immigration and energy.

But one area where the future is more hazy is how he follows up on the Biden administration’s aggressive antitrust stance.

This isn’t an area where we’re likely to see Trump try to undo everything that’s been done during Biden’s term.

So let’s look at what’s happened in recent years.

Biden’s headline maker was the appointment of FTC Chair Lina Khan and while she’s certainly a disruptor, her results have been mixed. She failed to block Microsoft’s $69 billion acquisition of Activision-Blizzard and Facebook’s purchase of virtual reality company Within Unlimited.

The FTC is waiting for a ruling on Kroger’s nearly $25 billion merger with Albertson’s, while also getting ready to launch an investigation into Microsoft’s cloud business.

Over at the Department of Justice, they won a landmark case against Google where a judge ruled it monopolized the search space. The government is now asking the judge to force Google to sell off Chrome to make it right.

It also stopped JetBlue from buying Spirit Airlines, and without the merger, Spirit Airlines has filed for bankruptcy protection.

It’s not all wins at Justice: the DOJ did fail to stop United Healthcare’s $13 billion acquisition of Change Healthcare.

And now their sights are on Hewlett Packard’s $14 billion acquisition of Juniper Networks. HP executives met with Justice Department officials last week to try to save the deal, Bloomberg reports.

With a big push of antitrust action before Inauguration Day, there’s still a full docket. The Justice Department filed cases against Apple, Ticketmaster-parent Live Nation, Visa, and Google again, but this time for its lock in the digital ad space.

So, what happens with antitrust when the new administration comes in? Especially when some of these cases can stretch the better part of a decade?

Let’s bring in antitrust expert and former FTC Chair and Commissioner Bill Kovacic.

Simone Del Rosario
Bill, we’re not walking into this with zero idea of how President Trump would deal with antitrust. Obviously, he’s held the office before. But what do you expect his position to be in the next four years?

Bill Kovacic
I expect in some areas that he’s not really going to tamper with the program that President Biden put in place, especially in the field of tech. He has a well-expressed antipathy towards a number of actors in the field. did initiate his justice department initiated the pending case against Google and the search market. His justice department began the investigation into Apple that generated a monopolization case.

His Federal Trade Commission appointees began the case against Facebook, focusing mainly on the acquisition of Instagram and WhatsApp. So this is not a sector to whom he feels he owes anything. Again, it’s a sector he doesn’t particularly like. So my general intuition is that in that area, he says carry on. Now he has said some curious things lately about a possible remedy in Google. And today,

Today, literally today, the Department of Justice is going to file a document that lays out its intentions for remedies in the Google search case. But he said that he might not be fond of a breakup, that Google’s an important company, don’t want to injure them in some way. I don’t know if that was a well-considered view about remedies. But his nominee to head the Department of Justice, Matt Gaetz, has said, breakup sounds good to me when it comes to this company.

And the vice president-elect, Vance, has said, breaking them up sounds good to me, too. So it seems within the upper echelon of the Trump brain trust that there’s a lot of enthusiasm for going through with the structural remedy. I think at a minimum that means that DOJ will have a pretty broad remit to proceed with wrapping up the case as it sees fit, without the White House jumping in and saying, don’t do that. Go easy on them.

So I think with respect to the big tech cases, those carry on without interference. In other areas, he may back off some. I expect a more permissive approach towards mergers than the Biden enforcement agencies have taken. And that was one of the big irritants that even the Democratic donors expressed concern about is that the deal-making environment has been made so much more difficult.

And what they were really pressing Harris for is a relaxation. I think if Vice President Harris had won the election, I think she would have accommodated them in some ways, in subtle ways, but gradually, she would have backed off of the very tough approach now that the two agencies are taking. I think that is the way she would have given assurance to her major business donors. But without question, think Trump will ease off of the merger enforcement mandate.

Simone Del Rosario
Okay, before we move on to the FTC, then let’s stick in the DOJ umbrella for a little bit. What do you make of what’s going on with Hewlett Packard? Do you think that they’re going to pursue action there with that acquisition, given so little time left in the Biden administration? And you saying you think that the next administration will be more favorable to acquisitions?

Bill Kovacic
Well, the current Assistant Attorney General for Antitrust, Jonathan Cantor, probably if he follows past custom, will submit his resignation early in January. So by the time the full investigation in that transaction is completed, and by the way, the timeline for that would carry well into 2025 before a decision to prosecute is made, he and perhaps some of his colleagues in the front office at the Antitrust Division will be gone. And the individual who will be heading

Antitrust Division. By tradition, is the senior career civil servant. That would be the current head of the criminal unit at the Antitrust Division. So will be a career civil servant who will probably be making the decision to prosecute there. Here again, it’s so much depends on what they find during the course of the inquiry. But with Jonathan Kander’s departure, lots of the people are still staying behind are probably imbued.

with the approach toward the enforcement that he’s brought to the agency, a real skepticism of settlements, concern that merger policy for tech generally had been far too permissive. I don’t see that disappearing here, but there is the opportunity for the department to be somewhat more cautious than he was in deciding what to do. When you’re the interim appointee, you’re in an awkward position. You don’t have the permanent mandate. You’re not really part of the new administration, the new team.

What you’d really like is for them to get on with appointing that person, getting them confirmed in the Senate. So anything that involves a major policy decision, you can turn to them and say, the file’s on your desk, it’s all yours.

Simone Del Rosario
Yeah. Let’s talk about the Lena Con of it all over at the FTC. Is Kahn gone?

Bill Kovacic
My instinct would be that on the day of the inauguration that evening or the next day, President Trump will sign a letter that designates one of the two Republicans on the commission to be the chair, probably as acting chair. That’s the routine when you have a regime change of the kind we’ve had. Chair Kahn’s tenure, her term expired in September, but she is allowed by law to remain on the commission.

until her successor is confirmed and comes to take office. the speed with which she departs the commission will depend on her own personal preferences. Does she want to stay as part of a loyal opposition, maintaining a three vote block that could operate to retard a rollback of her program? On a personal level, it’s not enjoyable to go through that kind of demotion.

From my own experience, it’s nice to get the letter that says that you are elevated to be the chair. It is no fun at all to be displaced. And sometimes your feeling is, I’m going to go, I’ve had enough. I stayed, but not everyone sees it that way. So in that respect, it depends on her preferences, but she could stay as a commissioner into 2025 until the White House nominates a successor.to be a commissioner and gets that person confirmed.

Simone Del Rosario
What’s confusing about her is, as you’ve alluded to, some of the support within Trump’s own team for Lena Con and what she has done at the FTC. She’s been there to make waves. She’s gone after Big Tech. JD Vance has said multiple times how much he likes her. So if she leaves, what about what she represents?

Bill Kovacic
What she leaves behind in part is a renewed debate about what antitrust should be all about. And that’s going to be durable. She brought forward the question of which interests should be protected in the enforcement of the antitrust laws. What’s the correct role of antitrust law in safeguarding the interests of small and medium enterprises? Shouldn’t antitrust be attuned to the effect of transactions or behavior in markets for labor? Shouldn’t antitrust have a greater concern about

social and political values that go beyond traditional efficiency concerns regarding price, quantity and innovation. That change in the debate, I think, is going to endure. And it’s reflected in part by exactly the voices that we hear from the Republican Party that have said competition policy is more than simply a better price, better quality, more innovation. That more egalitarian view

that a number of conservative Republicans hold is a reflection of a broader discussion in our society today about what competition law should do. So I think at a high level, the change in the debate, the change in the intellectual vision that she brought to the job is going to have a long life and that’s going to persist. How it manifests itself in individual cases is hard to tell, but she has carried out the very important task

of changing the way that elected officials and others think about what the FTC should do.

Simone Del Rosario
Former FTC chair and commissioner Bill Kovacic, there’s no one better than you to have on to talk about this. We really appreciate your time today.

Bill Kovacic
I’m most grateful, Simone. Thank you.